A Supersized Custody Battle Over Marvel Superheroes

Published: March 20, 2010

With the Kirbys, Mr. Toberoff will square off against a squadron of corporate lawyers that includes Mr. Quinn, whose most recent claim to fame was quashing Dan Rather’s $70 million breach-of-contract suit against CBS. Disney is no stranger to intellectual property fights, having spent 18 years battling a rights-infringement case involving Winnie the Pooh and ultimately winning. The company pushed so hard for an extension of copyright terms in 1998 that the resulting law was derisively nicknamed the Mickey Mouse Protection Act.

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There is nothing corporate about Mr. Toberoff. A graduate of Columbia’s law school, he practiced briefly in New York before ditching the law profession to become what he describes as “a glorified go-fer” for the director Robert Altman. Mr. Toberoff got a quick education in Hollywood’s rough-and-tumble ways in 1987 with “Zombie High,” a horror picture he made on a minuscule budget with student labor.

“I’ll cut your throat!” Mr. Toberoff recalls Aziz Ghazal, a partner on the project, screaming in one disagreement. Mr. Ghazal later became infamous, Mr. Toberoff noted, as the suspected killer of his own wife and daughter before he was found shot to death in an apparent suicide.

In 1994, Mr. Toberoff met an heir to the writer-producer Robert Pirosh. After looking through old papers with his new friend, he discovered that the Pirosh estate owned hitherto undetected movie rights to the TV series “Combat!” It was the first of about 10 old shows, including “Fantasy Island” and “My Favorite Martian,” that Mr. Toberoff helped to recycle as movie projects.

A short leap later and he was back in legal practice, handling film rights cases. One included a suit in which he won an injunction blocking Warner from releasing a big-screen version of “The Dukes of Hazzard.” A judge ruled in 2005 that Warner had failed to secure rights to an earlier movie, “Moonrunners,” on which the new film was partly based. Warner settled for a reported $17.5 million.

Three years later, Mr. Toberoff won a ruling that allowed the heirs to Jerome Siegel, a co-creator of Superman, to reclaim their copyright from Warner and its DC Comics unit, though complex accounting issues in the case have yet to be resolved and the studio recently hired a new legal team. The heirs still haven’t seen any money.

Mr. Toberoff’s aggressive style has been controversial at times. Edmée Reit, the widow of Seymour Reit, a co-creator of the character Casper the Friendly Ghost, said Mr. Toberoff called her soon after her husband died to propose a rights lawsuit.

“Seymour was literally not even buried yet when this man started calling,” Mrs. Reit said in an interview. “I just felt this man was really an exploiter.”

Mr. Toberoff sharply disagreed with Mrs. Reit’s version of events. He said he contacted her at a time when she was expected to be a witness in a court case involving Casper and told her that a rights waiver her husband had signed before his death ran counter to the law.

“I thought this was wrong and informed Mrs. Reit of her rights in the process of investigating this situation in defense of my clients,” Mr. Toberoff wrote in an e-mail message last week.

Lisa Kirby said Mr. Toberoff began representing her after they were introduced by a mutual friend some years ago. She says that she is braced for a long fight, and that she believes that her father, who died in 1994, would have wanted the copyrights terminated.

“In the end, my father became consumed with the fact that he was not properly compensated or recognized for his tremendous contributions to Marvel, and sadly, he died without either,” Ms. Kirby wrote.

IN many ways, the Marvel case is simple. It turns on whether Mr. Kirby was working as a hired hand or whether he was producing material on his own that he then sold to publishers. The Copyright Revision Act of 1976, which opened the door to termination attempts, bans termination for people who delivered work at the “instance and expense” of an employer.

Mr. Toberoff and Marvel disagree on the circumstances under which Mr. Kirby created or co-created the trove of characters.

Pressed by Mr. Toberoff for a settlement, Marvel got fed up and sent the first volley with its January filing against the Kirby children in Federal District Court in Manhattan, seeking to end their efforts to regain long-term rights to the various characters. “Any contributions made by Kirby to the works at issue,” the complaint reads, “were works made for hire.”